Kreft v. Fisher Aviation, Inc.

• Decision Date: 22 March 1978
• Docket Number: Nos. 59473 and 59474,s. 59473 and 59474
• Citation: 264 N.W.2d 297
• Parties: Nolan KREFT, Appellee, v. FISHER AVIATION, INC. and Robert Fisher, Defendants, Piper Aircraft Corporation, Defendant-Appellant. Fred WILLIAMS, Appellee, v. FISHER AVIATION, INC. and Robert Fisher, Defendants, Piper Aircraft Corporation, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 297

264 N.W.2d 297

Nolan KREFT, Appellee, v. FISHER AVIATION, INC. and Robert Fisher, Defendants, Piper Aircraft Corporation, Defendant-Appellant.

Fred WILLIAMS, Appellee, v. FISHER AVIATION, INC. and Robert Fisher, Defendants, Piper Aircraft Corporation, Defendant-Appellant.

Nos. 59473 and 59474.

Supreme Court of Iowa.

March 22, 1978.

Ahlers, Cooney, Dorweiler, Haynie & Smith and L. W. Rosebrook, Des Moines, for defendant-appellant Piper Aircraft Corp.

McCullough Law Firm, P. C., Sac City, for appellees.

Considered by MOORE, C. J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.

REES, Justice.

This matter involves appeals in two separate but identical actions for damages for injuries sustained when the plaintiffs, Kreft and Williams, sustained injuries in the crash of an aircraft leased from the defendants Fisher Aviation, Inc. and Robert Fisher, and manufactured by the defendant Piper Aircraft Corporation. The cases were consolidated for the purposes of this appeal. Defendants Fisher Aviation, Inc. and Robert Fisher are not parties to the appeal, and defendant Piper Aircraft Corporation appeals from an order denying its applications and petitions to set aside and vacate default judgments against it, contending the district court clerk and the attorneys for the plaintiffs failed to send and furnish to them copies of orders, judgments and other documents filed in the case which Piper contends is a practice required by the Rules of Civil Procedure, and that such conduct deprived Piper of an opportunity to defend. We affirm the action of the trial court.

On May 26, 1974 the plaintiffs Kreft and Williams were injured in an accident when the plane Williams had leased from defendants Fisher and Fisher Aviation, Inc., crashed during a landing at the Sac City Airport. Plaintiff Williams was the pilot and Kreft was a passenger in the plane at the time of the accident.

The petitions of the plaintiffs in separate actions were filed on May 6, 1975. Personal service of original notices was had upon the defendants Fisher and Fisher Aviation on May 7, 1975 in Carroll County. On that same date, plaintiffs' attorney filed original notices directed to Piper Aircraft Corporation, a foreign corporation, with the secretary of state of the state of Iowa. On May 9, 1975 plaintiffs' attorney mailed to Piper Aircraft Corporation in Lock Haven, Pennsylvania, by certified mail, copies of the original notices and notices of filing with the secretary of state. Said notices were receipted for by one Yarnell, an employee of Piper, on May 13, 1975, and were on that date transmitted through the Finance Department of Piper to its Products Claim and Litigation Department for attention.

The notices were received in the Products Claim and Litigation Department of Piper by a clerical employee who filed the notices in an inactive accident investigation file and failed to bring them to the attention of anyone in authority at Piper. The documents remained unnoticed until December 12, 1975.

The defendants Fisher and Fisher Aviation entered their appearances on May 23, 1975; and on May 30 and June 27, 1975, stipulations between the plaintiffs and the other appearing defendants were filed affording said defendants additional time within which to respond to the plaintiffs' petitions. The answers of Fisher and Fisher Aviation were filed in both cases on July 18, 1975.

On July 14, 1975, there having been no appearance for Piper, the district court entered orders declaring Piper to be in default, after applications for default were made by plaintiffs' attorney. On September 22, 1975, after hearing on damages, the district court rendered judgments against Piper for $60,000 in the Nolan Kreft case and for $75,000 in the Fred Williams case, together with costs in each action. Plaintiffs' attorney directed a letter to Piper which was received by Piper on December 12, 1975, in which inquiry was made as to how Piper intended to satisfy the plaintiffs' judgments. Piper asserts it had received no communications of any kind of the progress of the Kreft and Williams cases other than the notices which were received in May and placed in the inactive file by the office personnel. No papers filed with respect to the continuances granted Fisher and Fisher Aviation, and no copies of orders or judgments in connection with the default proceedings or the entry of judgments had been forwarded to Piper.

On December 30, 1975 Piper filed its petitions and applications to set aside and vacate the default judgments. The applications were overruled in each case, from which rulings Piper appeals.

Defendant Piper Aviation Corporation raises the following issues for review:

(1) Was Piper denied equal protection of the law when it was not given notice of the default judgments while other parties in allegedly similar situations are given such notice under rule 233, Rules of Civil Procedure, or are protected from the entry of personal judgments under rule 234, R.C.P., for parties served by published notice under rule 60.1, R.C.P.?

(2) Did the trial court err in refusing relief to Piper under rule 236, R.C.P., by concluding that Piper's failure to receive notice of the default judgment did not toll the sixty-day period for setting aside default judgments under rule 236?

(3) Was Piper entitled to receive copies of the documents which were filed in the suits by parties other than Piper before Piper's default under rule 82, R.C.P.?

(4) Should the failure to include the individual names of plaintiffs in the notifications of filing to Piper render such notifications fatally defective under § 617.3, The Code, depriving the trial court of jurisdiction?

(5) Did the trial court abuse its discretion in its failure to grant relief to Piper from the default judgments under rules 236 and 252, R.C.P.?

I. The central question presented by Piper's constitutional argument in the first issue raised for review involves rules 56.1, 60.1, 233 and 234, R.C.P. Said rules provide:

"56.1 Personal service. Original notices are 'served' by delivering a copy to the proper person. Personal service may be made as follows:

"(a) Upon any individual aged eighteen years or more who has not been adjudged incompetent, either by taking his signed, dated acknowledgment of service endorsed on the notice; or by serving him personally; or by serving, at his dwelling house or usual place of abode, any person residing therein who is at least eighteen years old, but if such place is a rooming house, hotel, club or apartment building, the copy shall there be delivered to such a person who is either a member of his family or the manager, clerk, proprietor or custodian of such place."

"60.1. Known defendants.

"(a) In every case where service of original notice is made upon a known defendant by publication, copy of the notice shall also be sent by ordinary mail addressed to such defendant at his last known mailing address, unless an affidavit of a party or his attorney is filed stating that no mailing address is known and that diligent inquiry has been made to ascertain it.

"(b) Such copy of notice shall be mailed by the party, his agent or attorney not less than twenty days before the date set for appearance.

"(c) Proof of such mailing shall be by affidavit, and such affidavit or the affidavit referred to in rule 60.1 'a ' shall be filed before the entry of judgment or decree. The court, in its judgment or decree, or prior thereto, shall make a finding that the address to which such copy was directed is the last known mailing address, or that no such address is known, after diligent inquiry."

"233. Notice notice of default in certain cases. When any judgment other than one in rem has been taken by default against a party served with notice delivered to another person as provided in rule 56.1 'a ', the clerk shall immediately give written notice thereof, by ordinary mail to such party at his last known address, or the address where such service was had. The clerk shall make a record of such mailing. Failure to give such notice shall not invalidate the judgment.''

"234. On published service. No personal judgment shall be entered against a person served only by publication or by publication and mailing, as provided in rule 60.1, unless he has appeared."

Succinctly stated, the first issue presented for review is whether Piper was denied equal protection of the law when no notices of the default judgments were sent to Piper while under rule 233 parties served with notice by delivery to another person under rule 56.1(a), R.C.P., are entitled to notice of default, and under rule 234 no personal judgment can be entered against a defendant who has not appeared and who has been served by publication or by publication and mailing under rule 60.1. Piper contends it is situated similarly to a party served under the above rules since a corporation is served with notice only through its agents or employees. Piper insists that since it is situated similarly to parties served under rule 60.1, or served by delivery to another person under rule 56.1(a), the failure to send notices of the default judgments to it was a denial of equal protection of the laws under the 14th amendment of the United States Constitution.

Rules 233 and 234 indirectly establish a classification of persons who do not receive notice directly and are given another opportunity to be apprised of the proceedings by a notice of default judgment or are protected from the entry of personal judgments against them while persons receiving notice directly are not entitled to receive notices of default since they have been put on notice of the pendency of the proceedings.

In order to determine whether a classification is a denial of equal protection we must determine the classification is rationally related to a legitimate state interest and is not patently arbitrary. Lunday v. Vogelmann, 213 N.W.2d 904, 907 (Iowa 1973). The underlying purpose involved in ...